LARRY ADAIR v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4869-04T24869-04T2

LARRY ADAIR,

# 61925,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent-Respondent.

_______________________________________

 

Submitted January 30, 2006 - Decided February 24, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from a Final Decision of the New Jersey State Parole Board.

Larry Adair, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respndent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Lawrence "Larry" Adair (Adair) appeals from a final determination of the New Jersey State Parole Board (Board) dated March 30, 2005 which denied his application for parole and established a future parole eligibility term (FET) of 50 years. We affirm the denial of parole, vacate the 50-year FET and remand to the Board to establish a new FET of shorter duration.

I.

We begin with a statement of the relevant facts. On December 20, 1977, Adair was released on parole. He had been serving sentences that were imposed on October 3, 1975 and February 27, 1976 for breaking and entering, larceny, assault with a deadly weapon, robbery and sodomy. Adair's parole release was conditioned upon his completion of a community drug program at Patrick House in Jersey City. However, Patrick House refused to accept Adair and, while efforts were being made to place him in another program, Adair left the facility and absconded from parole supervision. The next day Adair began what has been aptly described as a "spree of crime and terror."

At around 12:30 p.m., on December 21, 1977, a female and her two-year old son, drove into the parking lot of a department store in Freehold. When the woman exited the vehicle, Adair approached her and forced her back into the car. Adair got in the driver's seat. He drove the woman and her son to a wooded area, stopped the car, turned off the engine and locked the doors. Adair took out a knife and held it to the woman's throat. Adair ordered the woman into the back seat of the car and told her to remove her clothing. Adair ordered the woman to put his penis in her mouth but she refused. He partially penetrated the victim and then stopped.

Adair got dressed and told his victim to put her clothes on. He robbed the woman of her money, rings and watch. With the woman and her child in the car, Adair drove to a gas station and purchased gasoline. Adair then drove to Howell Township and told the victim that he would "get her" if she ever told anyone what had happened. He ordered the woman and the child out of the car and drove off. The vehicle was later recovered in New York.

On March 29, 1978, an elderly woman was at home in Lakewood when she heard her husband scream, "call the police." The woman looked outside the back door and she saw Adair and an accomplice walking behind her husband. A rifle was pointed at her husband's back. The woman ran to the phone to call the police. She heard someone bang on the door and she was told to open the door.

The woman opened the door and Adair and his accomplice entered with the elderly man. One of the intruders took the phone out of the woman's hand, listened briefly on the line and then hung up. The elderly couple was tied up in the kitchen. The intruders took turns holding the couple at gunpoint. The home was ransacked for items of value. Adair and his accomplice took the elderly couple to the attic where they were again tied up. The intruders stole their victims' car and drove off. They were later apprehended in Lakehurst. They had in their possession a .22 caliber rifle and the elderly woman's watch.

Adair was charged with the following crimes as a result of the events of December 21, 1977: kidnapping, kidnapping while armed, abduction, robbery, assault, possession of a dangerous weapon, sodomy and lewdness. In addition, Adair was charged with the following crimes as a result of the March 29, 1978 invasion of the home of the elderly couple: breaking and entering, larceny, assault, robbery, armed robbery, false imprisonment and carrying a firearm.

Adair was incarcerated in the Ocean County Jail. On May 16, 1978, Adair assaulted his cellmate, after making sexual advances and asserting that he found it easy to kill people. The following day, Adair twice sodomized his cellmate. He was charged with two counts of sodomy and one count of making threats to kill.

On October 13, 1978, Adair was sentenced to 40 years in jail, with a minimum term of 38 years, on the charges arising from the events of December 21, 1977.

Adair was sentenced on November 15, 1978, to concurrent terms of 15 to 20 years for each count of sodomy and a concurrent term of 10 to 12 years for making the threats to kill. The sentencing judge ordered that these sentences run consecutive to the sentences imposed on charges arising from the December 21, 1977 kidnapping and sexual assault.

In addition, Adair was sentenced on January 29, 1979 on the charges arising from the invasion of the home of the elderly couple. Adair was sentenced to 3 to 5 years for armed robbery, a concurrent term 6 to 7 years for breaking and entering, and a concurrent term of 13 to 15 years for the robbery. These sentences also were made consecutive to the previously imposed sentences. Adair's aggregate sentences resulted in a custodial term of no less than 66 years and no more than 75 years. Adair was incarcerated at Trenton State Prison.

On September 28, 1979, Adair was transported from the prison to the Offices of the Ocean County Prosecutor for questioning in connection with the investigation of the homicide of a twelve-year old boy whose body was found on January 22, 1978. Adair was questioned because he told another inmate that he had sodomized and murdered the boy. Adair initially denied any involvement in these crimes. The investigating officers asked Adair whether or not he would be involved in the killing of a young male and Adair told the officers that he would line up 100 young boys and "do them all." Adair admitted that he sodomized and murdered the boy.

On October 11, 1979, Adair accompanied the investigators to the crime scene. Adair told the officers that he took a bus from New York City and got off at a shopping mall in Freehold. Adair befriended his victim, who was in possession of a bicycle. Adair said that he walked with the boy to a wooded area at Dam Road.

Adair said that he took out a knife and told the boy to take off his clothes. Adair pointed out the spot where he sodomized the boy and then stabbed him six or eight times in the chest. He identified the spot where he disposed of the boy's undergarments. Adair said that, after murdering the boy, he went to Toms River where he caught a bus back to New York City. Several days later, Adair discarded the knife that he used to murder the boy outside a bar on Eighth Avenue.

Adair was charged with sodomy and first-degree murder. On October 7, 1980, Adair was convicted and sentenced to life imprisonment on the murder charge. The judge ordered that the sentence run consecutive to the sentences Adair was already serving. Adair also was sentenced to a concurrent term of 20 years on the sodomy charge.

Adair also has been convicted of committing two other murders in New York. The first occurred on January 22, 1978. It appears that Adair and two others were drinking and decided they needed money. They were robbing an individual in his apartment when Adair began to stab the victim. One of his accomplices joined in. The victim died as a result of the stab wounds.

Adair committed the other murder on March 26, 1978. On that date, Adair and his cohort were drinking at a pub in New York City. They met an individual and went with him to his apartment. There, Adair stabbed the individual with a kitchen knife while his accomplice tied the victim's hands and feet with a lamp cord. They stuffed a shirt into the victim's mouth. The victim died from internal hemorrhaging and asphyxiation.

On June 16, 1979, Adair was sentenced for these two murders. He received two concurrent life terms, to be served concurrently with his New Jersey sentences.

Adair became eligible for parole after having served 26 years. The matter was referred to a two-member panel of the Board. The panel conducted a hearing on November 21, 2003. At the hearing, Adair denied sodomizing and murdering the young boy. He denied that he sexually assaulted the female victim in front of her two-year old child. Adair said that he had no idea he committed that particular crime one day after he had been paroled in 1977. Adair was asked about the robbery of the elderly couple and he said that he only recalled robbing the couple and stealing their car. He denied sodomizing a fellow inmate while he was incarcerated.

The panel members asked Adair to discuss the sexual nature of his crimes but Adair said that it been so long he could not remember the crimes. Adair also said that he took responsibility for the crimes even though he did not commit the offenses. Adair denied telling a reporter that, if he was released on parole, he would go to Ocean County and burn, stab and rape someone.

The two-member panel denied parole and referred the matter to a three-member panel to establish a FET. The three-member panel issued a decision in which it detailed Adair's extensive criminal history, the circumstances of the crimes for which Adair was incarcerated and Adair's statements at his parole hearing. The panel set forth its reasons for establishing a FET outside of the administrative guidelines.

The panel stated that Adair's prior offense record is extensive. It began when Adair was eleven years old. His arrests and convictions include charges for breaking and entering, larceny, theft, assault and battery, assault with a deadly weapon, possession of stolen property, armed robbery, abduction and sodomy. The panel noted that Adair's record of offenses had become increasingly more serious over time. He is presently incarcerated for multiple offenses.

The panel also noted that Adair had previously been placed on probation and on parole but these opportunities failed to deter him from further criminal conduct. The panel pointed out that Adair had been paroled on December 20, 1977 and the following day committed the kidnapping, robbery and sexual assault. Previous periods of incarceration also had not deterred Adair from re-offending. The panel noted that Adair had been incarcerated on at least ten different occasions from 1967 to 1976.

The panel additionally stated that Adair had committed numerous institutional infractions of a serious nature during his present incarceration. These include assault, fighting, disruptive conduct, weapons possession and assault with a weapon. Adair had been sanctioned for a variety of less serious institutional infractions in the period from 1980 to 1995.

The panel additionally took note of what it termed Adair's "insufficient problem resolution." The panel stated that, despite his criminal convictions, Adair denied perpetrating the crimes for which he was incarcerated. The panel stated that Adair remains a danger to the public's safety. His participation in institutional programs has been sparse. The counseling has "done little, if anything, to provide [Adair] with even a scintilla of self-awareness." The panel stated that Adair's comments at his parole hearing made "it abundantly clear" that he is no closer to understanding the "deep-seated emotional issues that led" to his "aberrant and otherwise anti-social behavior" than he was when he started his "career of crime."

The panel further found that Adair had minimized the seriousness of his criminal conduct. In addition, the panel stated that, despite an earlier admission that he used cocaine on a daily basis at any earlier time, and his assertion that he had used LSD at least 200 times since 1968, Adair had not participated in any substance abuse counseling while incarcerated. The panel stated that ongoing participation in such a program might have "provided a foundation for remaining substance-free," and also may have enabled Adair to develop a "true sense of responsibility and of social values." In addition, the panel noted that Adair's parole plan was inadequate.

The panel took note of certain mitigating factors, which included reports concerning Adair's housing and work in prison, the educational/vocational report, a special activities report, and the fact that Adair had been infraction free in the institution since September 1995. The panel also stated that it had considered certain confidential information which had a "significant impact" upon its decision.

The panel stated that a FET of less than 50 years would be "wholly inconsistent" with the conclusion that after 26 years in jail, and throughout most of his life, there has been a need "for significant measures" to address the panel's concerns, which "strongly indicate" that Adair has not "satisfactorily reduced the likelihood of future criminal behavior." The panel added:

As an inmate sentenced under Title 2A of the Criminal Code, you are entitled to annual reviews. At these reviews your progress, or lack thereof, towards rehabilitation will be monitored. It is strongly encouraged that you participate in these reviews. If the Special Panel determines at your annual review that you have made progress towards your rehabilitation, you may receive a reduction in the future parole eligibility term. Also, the Special Panel has the option of referring your case for a parole release hearing.

Adair sought review of this determination by the full Board. In its final determination dated March 30, 2005, the Board affirmed the panel's decision to deny parole and the establishment of the 50-year FET.

Adair appeals and raises the following issues for our consideration:

POINT I: THE PAROLE BOARD'S FUTURE ELIGIBILITY TERM OF 50 YEARS WAS ARBITRARY AND CAPRICIOUS, MANIFESTLY EXCESSIVE AND CREATES AN ABUSE OF DISCRETION BY THE PAROLE BOARD, IN VIOLATION OF U.S. CONST. AMEND. V., VIII, XIV; N.J. CONST. (1947) ART. I, PARS. I, XII; ART. VI, V, PAR. 4; THE PAROLE ACT, N.J.A.C. 10A:71; R. 2:2-3(4).

POINT II: THE PROCEDURAL SAFEGAURDS PROVIDED BY THE STATUTES OF THE 1979 PAROLE ACT AND THE ADMINISTRATIVE CODE WERE NOT ADHERED TO IN THE PRESENT CASE, WHICH DENIED APPELLANT THE RIGHT TO A FAIR HEARING AND DUE PROCESS OF LAW IN VIOLATION OF U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PAR. I; ART. VI, V, PAR. 4; N.J.S.A. 30:4- 101 TO 30:4-140; N.J.A.C. 10A:71.

II.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid. In reviewing a final determination of the Parole Board, we consider: 1) whether the agency's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the findings upon which the agency acted; and 3) whether in applying the law to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 24 (1998)(Trantino IV).

The Supreme Court has recognized that the Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001)(Trantino VI)(quoting from Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Indeed, the parole release determination "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). Decisions of the Board necessarily involve discretionary assessments of "a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Ibid. (quoting from Kadish, The Advocate and the Expert Counsel in the Peno-Correctional Process, 45 Minn. L. Rev./u>. 803, 813 (1961)). We have recognized that, in making these determinations, the Board's discretionary powers are broad but not unlimited and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J. at 173 (citing Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

We turn first to the statute and regulations that govern parole determinations and establishment of FETs for inmates who are denied parole. Pursuant to the Parole Act, an adult inmate must be released at the time of parole eligibility unless the Board finds, by a preponderance of the evidence, that there is "substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." N.J.S.A. 30:4-123.53(a). See Trantino VI, supra, 166 N.J. at 126 (citing In re Trantino Parole Application, 89 N.J. 347, 366 (1982)(Trantino II)). An inmate's initial parole eligibility date is determined in accordance with N.J.S.A. 30:4-123.51. If the inmate is not released on the initial parole eligibility date, the Board must establish a FET for the inmate. N.J.S.A. 30:4-123.56(a).

The Board is required to establish a schedule of future parole eligibility dates. Ibid. "In developing such [a] schedule, particular emphasis shall be placed on the severity of the offense for which [the inmate] was denied parole and on the characteristics of the offender, such as, but not limited to, the prior criminal record of the inmate and the need" for continued incarceration. Ibid. If the FET established for a particular inmate departs from the schedule, "the board panel shall include particular reasons therefor." N.J.S.A. 30:4-123.56(b). The inmate must be released on the new eligibility date unless the Board finds that the inmate fails to meet the standard for parole release at that time. N.J.S.A. 30:4-123.56(c).

The Board's schedule of FETs for adult inmates is set forth in N.J.A.C. 10A:71-3.21. An inmate who is "serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). The FET may be increased or decreased by up to nine months "when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c). If the panel determines that the FET established in accordance with the schedule is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior," it may establish a different FET. N.J.A.C. 10A:71-3.21(d).

In doing so, the panel must consider the factors enumerated in N.J.A.C. 10A:71-3.11, used to determine whether an inmate should be released on parole. N.J.A.C. 10A:71-3.21(d). They include, but are not limited to, the facts and circumstances of the offense, aggravating and mitigating factors concerning the offense, commission of serious disciplinary infractions, any pattern of less serious disciplinary infractions, mental and emotional health, statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime, participation in institutional programs and statements or evidence presented by a prosecutor or other criminal justice agency. N.J.A.C. 10:71-3.11(b).

It is clear from the record before us that the Board did not act arbitrarily or capriciously in denying Adair's application for parole release. Indeed, there is ample support in the record for the Board's determination that there is a substantial likelihood that Adair will commit another crime under the laws of this State if he is released from jail. N.J.S.A. 30:4-123.53(a).

Adair's prior offense record is extensive and the crimes for which he has been convicted are unquestionably serious in nature. His offense record has become increasingly more serious over time. Adair presently is incarcerated for multiple offenses. Moreover, despite prior incarceration, probationary terms and parole release, Adair was not deterred from committing additional crimes. The record further shows that Adair has made virtually no progress towards rehabilitation during his incarceration. Adair has not participated sufficiently in programs that would assist him in understanding the reasons for his criminal behavior. In addition, Adair failed to participate in substance abuse counseling while in jail.

The record fully supports the panel's finding that Adair has little or no insight into the reasons for his criminal behavior. As the panel found, Adair has shown a complete absence of self-awareness and a total lack of understanding of the emotional issues that led to his aberrant and criminal conduct. Adair had denied kidnapping the young woman with the two-year old child. He denied sodomizing his fellow inmate. At his parole hearing, Adair was asked to discuss the sexual nature of his crimes but he professed a lack of memory concerning those events due to the passage of time. Furthermore, although Adair has been infraction-free since September 1995, his institutional record includes an array of serious infractions, including assault, fighting, disruptive conduct and weapons possession. When incarcerated in the Ocean County jail, Adair beat and sodomized a fellow inmate.

The record also provides substantial credible evidence for the Board's determination that establishment of a FET based on the Board's guidelines would be "clearly inappropriate due to" Adair's "lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). When this matter was considered by the Board, Adair had been incarcerated for 26 years. As we stated previously, Adair has made little if any progress in rehabilitation or treatment. The likelihood that he would commit another crime if released has not been diminished. We therefore are convinced that the Board did not abuse its discretion when it determined that a FET of longer duration than prescribed by the guidelines is warranted in the circumstances.

However, we are not convinced that the record supports the establishment of a 50-year FET. Fifty years is substantially longer than a FET of up to 3 years that is called for under the guidelines. In addition, Adair first became eligible for parole after serving only 26 years. The new FET is almost twice as long as that time period. Although the three-member panel and the Board properly considered the relevant factors in N.J.A.C. 10A:71-3.11(a), and established a clear basis for a FET that departs from the Board's guidelines, the findings do not establish a basis for a FET of such extraordinary length. Adair is presently 52 years of age. A FET so far in the future is tantamount to having no future eligibility date at all.

We recognize that a parole eligibility term may be reduced by commutation credits for "diligent application to work and other assignments." N.J.A.C. 10A:71-3.2(g)(2). We also recognize that an inmate who has been given a FET outside of the administrative guidelines is entitled to annual reviews of his parole status, which may result in the scheduling of a parole hearing in advance of the FET. N.J.A.C. 10A:71-3.21(f). Despite these considerations, we are convinced that the 50-year FET established in this case is excessive.

In McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544 (App. Div. 2002), we considered an appeal from the Board's decision denying parole and its establishment of a 30-year FET. McGowan was charged in 1973 with the rape and murder of a seven-year old girl and in 1974 he was sentenced to life in prison. Id. at 547. McGowan initially became eligible for parole in 1987. Parole was denied and a 12-year FET established. Id. at 548. McGowan again became eligible for parole in 1994. Parole was denied and a 20-year FET established. Ibid. We twice remanded the matter for reconsideration and the Board re-affirmed its denial of parole. A three-member panel established a 30-year FET, which was upheld by the full Board. Id. at 549.

We affirmed the Board's denial of parole and the 30-year FET. We stated:

Based on [McGowan's] own testimony, a "reasonable mind" could find the evidence sufficient to support the Board's conclusion that [McGowan] is substantially likely to commit another crime if released. In reviewing all of the evidence, we conclude that it was sufficient to support the Board's finding that appellant has made no substantial progress in addressing the issues that led him to murder the child in 1973: he has regressed in that he now denies his earlier pedophilic fantasies and tendencies, he has lied and manipulated evaluators, played "word games" during parole hearings, and demonstrated a substantial risk for recidivism.

[Id. at 562.]

We added that a FET determination must be focused "squarely on the likelihood of recidivism." Id. at 565. We stated that, because McGowan had a clean institutional record, it was likely that the FET would be reduced over time. Ibid. Moreover, we noted that McGowan was entitled to annual review hearings in which the Board may assess his progress and schedule a parole hearing if he showed "significant changes in his response to psychiatric treatment." Ibid. We concluded that the Board had not abused its discretion in establishing a 30-year FET and its decision was supported by substantial credible evidence. Ibid.

Here, as in McGowan, Adair is serving a sentence for murder and, despite a lengthy period of incarceration, he has not made significant progress towards mitigating the likelihood of recidivism. However, there are factors that distinguish this case from McGowan and suggest that Adair may require more than 30 years to address the reasons for his criminal conduct and significantly reduce the likelihood that he will commit a crime if released on parole.

For example, Adair is serving sentences for serious crimes other than murder. Adair has a lengthy history of criminal conduct which was not the case in McGowan. Adair has previously been incarcerated and this did not deter him from committing other and more serious crimes. In addition, Adair was paroled in 1977 and immediately thereafter began to commit additional crimes, including the murder for which is now incarcerated, as well as the two other murders committed in New York. Adair has a significant number of issues to address along the path of rehabilitation. Therefore, it would not be inappropriate for the Board to establish a FET that is several years longer than the 30 years we upheld in McGowan.

We emphasize that the record makes clear that Adair is not entitled to parole release at this time. Indeed, in view of his extensive criminal record, the serious crimes for which he is now incarcerated, and his failure to make significant progress in reducing the likelihood of recidivism, we cannot say whether Adair will ever qualify for parole release under the standard established by N.J.S.A. 30:4-123.53. Nevertheless, we are convinced that it is arbitrary and capricious for the Board to require that Adair serve an additional 50 years, less appropriate credits, before the Board will be required to consider whether he meets the statutory standard for parole. We therefore vacate the 50-year FET and remand to the Board to establish a new FET for Adair.

Adair raises other contentions in his challenge to the Board's decision. He argues that some of the information concerning his criminal record relied upon by the Board is inaccurate. Adair asserts that he was never given an "in depth" psychological evaluation, as the Board claims. Adair contends that the Board erred in considering testimony from Lt. Michael Mohel of the Ocean County Prosecutor's Office, who asserted that Adair assaulted him and threatened to kill him on October 19, 1979. Adair additionally argues that he was not given adequate notice of his parole hearing. He says that he did not have sufficient time to prepare for the hearing. He also contends that he was not advised that he could seek a postponement of the hearing. Adair further asserts that he was not provided with a copy of the information that the panel intended to use at the hearing and, therefore, he did not have an opportunity to offer a rebuttal.

We have carefully considered these contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

We affirm in part, reverse in part and remand to the Parole Board for establishment of a new FET in accordance with the guidelines set forth herein. We do not retain jurisdiction.

 

We note that the statute was amended in 1997, by L. 1997, C. 213, 1. Based on the dates of Adair's crimes, we apply the 1979 version.

(continued)

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A-4869-04T2

February 24, 2006